Forms of adoption
Contemporary adoption practices can be open or closed.- Open adoption allows identifying information to be communicated between adoptive and biological parents and, perhaps, interaction between kin and the adopted person. Rarely, it is the outgrowth of laws that maintain an adoptee's right to unaltered birth certificates and/or adoption records, but such access is not universal.Open adoption can be an informal arrangement subject to termination by adoptive parents who have sole authority over the child. In some jurisdictions, the biological and adoptive parents may enter into a legally enforceable and binding agreement concerning visitation, exchange of information, or other interaction regarding the child.
- The practice of closed adoption (aka confidential or secret adoption), which has not been the norm for most of modern history,seals all identifying information, maintaining it as secret and preventing disclosure of the adoptive parents', biological kins', and adoptees' identities. Nevertheless, closed adoption may allow the transmittal of non-identifying information such as medical history and religious and ethnic background.Closed adoption, lack of medical history and the broken thread of family continuity can have a detrimental impact on an adoptee's psychological and physical health. The lack of openness, honesty and family connections in adoption can be detrimental to the psychological well being of adoptees and of their descendants.
Adoption legally terminates the natural bond between a child and its natural parents and substitutes these parents with adoptive parents, creating a permanent relationship. This is done through the Kenya Adoption Act (Cap. 143) which provides for the making and registration of adoption arrangements made by adoption societies and other persons concerned with the adoption of children and the restriction of pecuniary transactions in relation to adoption matters. An adoption order may be made only in respect of a person who is aged 18 or below, is not married and has not at any time been married.
Section 4 of the Kenya Adoption act lists three categories of persons who obtain an adoption order:
• persons who have attained 25 years of age and are at least 21 years older than the child to be adopted
• a relative of the child who is at least 21 years of age
• the mother or father of a child who has been born out of wedlock and whose parents are not mar - ried to each other.
The following restrictions also apply:
• A sole male applicant may obtain an adoption order only in special and exceptional circumstanc - es.
• A spouse in a polygamous marriage may obtain an adoption order only in special and exceptional circumstances.
• An applicant who is of a different race to the child may obtain an adoption order only in special and exceptional circumstances.
• An applicant who does not intend to reside with the child in Kenya may be granted an adoption order only in special and exceptional circumstances.
The Adoption Act should be amended as follows:
• Adoptions at early ages, for example between one and five years, should be preferred. Older chil - dren should only be adopted in exceptional circumstances at the court's discretion. The process of adjusting to different home conditions is more exacting on older children.
• The age of adopting parents should be changed to between 28 and 50 years for women and 28 and 60 years for men, considering the nurturing required of such parents. Health conditions should also guide the court alongside these age requirements.
• Race as a factor in granting or refusing an adoption order should be repealed. Caution should, however, be exercised in granting adoption orders where the adopting parent and the child belong to different races.
• Intending adopters should be required by law to produce evidence of economic standing.
• The personal character of a prospective adopter should be a relevant factor in making an adoption order.
• The age and sex of the child should be important factors for consideration where a single man or a woman apply for an adoption order. 7
• International adoptions involving Kenyan chidren should be subject to the restrictions in Section 4 of the act along with all the above conditions. In addition, in international adoptions: A single man should not be granted an adoption order. If the applicant is married, the marriage must be a heterogeneous union. The applicant(s) must obtain authority from a recognised juvenile court in their home country The applicant(s) must obtain immigration authority from their home country respecting the adopted child. The applicant(s) must produce a security bond from their home country for the safety of an adopted child. The applicant(s) must produce a certificate of moral fitness. The applicant(s) must produce a certificate of financial fitness. The applicant(s) must appear before a High Court judge for a preliminary hearing before proceeding to an adoption society. The applicant(s), if successful at the preliminary hearing, should be required to remain in Kenya for at least three months, during which an interim order is in force and a Kenyan agency is to be appointed guardian ad litem.
The guardian ad litem must be able to visit the child freely and make frank reports in court. The court should have .the power to reject any preliminary application summarily; the power to act on its own motion between the preliminary hearing and the final order, the power to rescind any order made in the mean - time and the power to impose penalties in accordance with the law (which should provide the same).
• Any appeals in such cases should be heard under a certificate of urgency.
• A register of international adoption should be kept by the public office in charge of adoptions.
• Kenyans adopting abroad and complying with the laws of the country in question should have such adoptions automatically registered in Kenya and governed by Kenyan law . These suggestions are based on the fact that while international adoptions are not undesirable, it is advisable to keep a tight rein on them given the fact that the children adopted will be out of our courts' jurisdiction. For adoption of children born out of wedlock where the father has not acknowledged paternity, the law should require that the consent of the unwed mother (and that of her parents if she is under 18) is sufficient consent. However, the court should have discretion to require the consent of the extended family.
The adoption process should be streamlined by establishing a Council of Adoption to:
• formulate policy in matters of adoption
• liaise between adoption societies, government and non-governmental or ganisations
• propose names of officers who may serve as guardians ad litem
• monitor adoption activities in the country • expedite all documentation required for the adoption process